The military judge in a Marine sergeant’s sexual assault trial should have assumed that the commandant’s 2012 Heritage Brief tour amounted to unlawful command influence and granted the defense appropriate legal relief, the Corps’ appellate court ruled.

Even so, the judge’s error did not materially affect the outcome of the case, the Navy-Marine Corps Court of Criminal Appeals concluded in an unpublished opinion issued Jan. 31. The appellate judges let the lower court’s findings stand, a decision that the defense team is likely to appeal to an even higher court.

Former Sgt. Roger Easterly

went to court-martial in June 2012 on charges of rape, sexual assault, simple assault, adultery and making a false official statement. He was accused of engaging in rough sex with two civilian women, which resulted in bite marks and wounds, during a night of drinking while stationed at Marine Corps Air Station Beaufort, S.C., in Jan. 2012. A military jury acquitted Easterly of rape and sexual assault, but convicted him on the other charges. Easterly spent nearly 16 months in the brig and received a bad conduct discharge.

The issue of unlawful command influence has been raised at nearly every Marine Corps sexual assault trial since Gen. Jim Amos toured bases across the Corps in spring 2012 to emphasize that Marines would be held to the highest standards of conduct. During the brief, Amos said that 80 percent of sexual assault reports stemmed from real crimes.

In most of these courts-martial in which the issue of UCI has been raised, the military judge has granted the defense motions and provided relief in the form of additional challenges in jury selection or some other advantage. Easterly’s case was the first to reach the appeals court after a judge denied a UCI motion.

In their 16-page opinion, appellate judges Moira Modzelweski and Jeffrey Fischer, both Navy captains, skirted the question of what long-term impact Amos’ remarks might have on military justice. They addressed the issue by “assuming without deciding” that the Heritage Brief created at least the appearance of unlawful command influence.

The fact that jury members acquitted Easterly on the rape and sexual assault charges, coupled with convincing physical evidence and the admission by Easterly’s defense attorney, Capt. David Peters, during closing arguments that his client had committed adultery and assault, support the findings in the case, the judges wrote.

“We are convinced beyond a reasonable doubt that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt as to the fairness of the appellant’s court-martial, to include the adjudged sentence,” they wrote. “Accordingly, we decline to grant relief.”

Peters said Tuesday that he plans to appeal the court’s ruling, requesting that the Court of Appeals for the Armed Forces take up the case.

“The court has apparently declined to comment on the central issue of the case, which is whether the appearance of unlawful command influence was, in fact, created under the standard,” he said. “It’s an extremely important issue in contemporary military justice as to whether or not these types of comments constitute unlawful command influence.”

The long-term effects of the Jan. 31 ruling are unclear, Peters said, since the court found his client should have received legal relief during the trial but did not merit a remedy on account of the judge’s error. He also suggested the armed forces’ appellate court might conduct a deeper analysis of the effects of apparent unlawful command influence that were created by Amos’ remarks.

“There is obvious confusion, and hopefully CAAF will clarify that for us,” Peters said.

He has 60 days from receiving a copy of the decision to file an appeal; CAAF will then decide whether the case deserves a review.